Friday, 12 December 2014

Making laws: Keep watch at every stage of process

An amendment that made the House sit up and listen puts the Bill scrutiny process under the spotlight
By Tham Yuen-C, The Straits Times, 11 Dec 2014

TUESDAY, Nov 3, seemed another typical day in Parliament. A Bill was being put to the House for passing. Just as politicians wrapped up the regular debate that precedes a Bill's passing, the Speaker of the House addressed a woman sitting by the front benches, asking about an amendment she wanted to make.

Somewhat curious, elected Members of Parliament turned to check that they were not hearing things - for the woman who wanted the change was not of their ranks, but Nominated MP Chia Yong Yong.

She sought a last-minute amendment to a clause in the much-heralded Pioneer Generation Fund Bill to create a $9 billion fund for the health-care needs of first-generation Singaporeans.

Ms Chia said the clause suggested that the pioneers could be subjected to means-testing, and she wanted it replaced.

A qualified lawyer, she was using an aspect of the British Westminster-style parliamentary process - which is the basis of today's Singapore system - to propose a change to a Bill be made during the committee stage of lawmaking.

No Member of Parliament had done so for 10 years.

Under Westminster-based systems in other countries, Bills go on to an intense committee stage after being debated, during which MPs can propose amendment clauses, and omit, substitute or add words. But in Singapore, the committee end of things has become somewhat of a formality.

No wonder, then, that Ms Chia's move met surprise and some confusion. Indeed, MPs went on to vote against the amendment. But the next day, Senior Minister of State for Finance Josephine Teo agreed to the change and thanked Ms Chia for the proposal.

The last time an MP suggested a change was in 2005, when then Non-Constituency MP Steve Chia moved a motion to amend the Income Tax (Amendment) Bill on behalf of then NMP Ivan Png, who was away in Geneva. Mr Png asked for a reduction in the length of time tax records must be kept, but his amendment was rejected.

Before that, the two MPs who proposed the most amendments this way were former NMP and National University of Singapore law don Walter Woon, and former Workers' Party MP J. B. Jeyaretnam. With the latter, it was to protest against laws that he did not agree with.

During Prof Woon's three terms as NMP from 1992 to 1996, he suggested amendments on at least four occasions, many related to clauses that he felt were too widely drafted.

One memorable example was in 1996, to the Miscellaneous Offences (Public Order and Nuisance) (Amendment) Bill. He proposed that some clauses criminalising nudity be more specific - so it would not include those nude in their own homes and, without intending to be, spotted by people outside. This was rejected.

Besides amending a Bill, MPs who disagree with it can also vote against it entirely. This means they do not want the law to be passed, and would not accept it with just the kind of minor changes that can be allowed at the committee stage.

Former NMP and Singapore Management University constitutional law professor Eugene Tan says: "When MPs object to a Bill, they are saying that the Bill is fundamentally flawed, and no amendment can actually deal with the defect."

Why not more often?

IN SINGAPORE, this committee stage is typically over in minutes. More often than not, the committee goes through clauses in batches, instead of line by line.

In some other countries with Parliaments based on the Westminster system, it can take hours or multiple sittings. For example, the UK House of Commons Public Bill Committee considering the Pension Schemes Bill sat 10 times this year on it.

Prof Tan notes: "In a way, it is a formality (here) when the Parliament is in committee stage." Part of the reason is that Bills here are generally well drafted, and MPs may feel the Bills are fit for the purpose and do not require much amendment, he says.

Between the time when a Bill is first tabled and its second reading in the House, the ministries responsible for it, as well as the Attorney-General's Chambers that help draft it, would also have gone through it.

This is when they may discover minor errors, which will be amended in an order paper supplement tabled before Parliament sittings, says Prof Tan.

Deputy Speaker of the House Seah Kian Peng says that with the Government consulting widely before Bills are tabled, any issues would have been ironed out at an earlier stage. "Therefore, the likelihood of it missing something or needing to amend it during the committee stage is less," he says.

It is also difficult to amend Bills "on the fly" since changing the words in one part may affect other parts, says MP and lawyer Vikram Nair.

"Quite often they are drafted very precisely and if you amend the words in one part without thinking through the other parts, that might be problematic," says Mr Nair.

Besides, says MP and lawyer Hri Kumar Nair, there are other ways to contribute to the process of scrutinising Bills. "You ask for an amendment when you think that what's in the Act is clearly wrong. Most of the time it's not the case, and it's more about language that is unclear. But laws have to be broad to cater to many situations," he says.

Mr Hri Kumar Nair, who often asks questions about specific clauses in Bills, says clarifying these points during the debate can help people understand the laws better. During the debate on the Road Traffic (Amendment) Bill in September, he was among several MPs who asked for clarification on whether the law, which prohibits using mobile phones while driving, would cover all electronic devices that could prove a distraction for drivers.

Parliamentary transcripts, or Hansard, can be referred to by the courts to help in interpreting statutes later, says Mr Hri Kumar Nair.

What about PAP MPs?

ACCORDING to parliamentary records, only NMPs and opposition MPs have made use of the committee stage to suggest amendments. No PAP MP has ever done so.

Mr Hri Kumar Nair and Mr Vikram Nair say it is because ruling party MPs have other informal channels to moot changes, and would have already given their feedback earlier.

Those from the relevant Government Parliamentary Committees, for instance, are often consulted by the Government before the Bills are even introduced in Parliament. "That's where a lot of discussion takes place and it makes sense because that way the drafters can go back and consider the proposals," says Mr Vikram Nair.

Sometimes, MPs are also invited to sit on special committees formed to look into proposed legislation. Says Mr Hri Kumar Nair: "We would've given our inputs beforehand. We are involved upstream as well as downstream. It makes sense, since MPs are the representatives of the people, and you wouldn't want the Government to table a Bill without first talking to people."

And while there is a party whip - Health Minister Gan Kim Yong - who is supposed to ensure MPs vote according to the party line, it is not enforced for amendments in Bills during the committee stage, says Mr Seah. This means PAP MPs are free to moot such amendments, or vote to accept those proposed by other MPs.

As for opposition MPs, Prof Tan reckons they may have preferred to register their disapproval more strongly by voting against Bills they fundamentally cannot agree with.

Another reason could be that the MPs may feel their proposed amendment would be voted down anyway, since the PAP controls a majority in Parliament, says Prof Tan.

Mr Seah acknowledges that the "numbers are stacked up in that sense".

Efficiency v public process

AN UPSIDE of this Singapore style of making laws is that Parliament makes efficient use of time. The House sat for 33 days this year and has passed 40 pieces of legislation so far.

And 29 went through the second reading, committee stage and third reading in a day.

Says Mr Seah: "The way our Parliament has been functioning serves us quite well - it's a balance between efficiency and ensuring there's enough space and time for Bills to be aired, considered and debated robustly."

But the downside of providing feedback behind the scenes - as opposed to in Parliament - is that the public is not privy to the process of discussion and debate that goes into writing the laws.

Mr Vikram Nair, however, notes that the public is often brought into the process through public consultations started by the ministries in charge of the Bill. "I don't think the public keeps up with the detailed discussions in Parliament. I suspect having public consultations is much better so they can give their feedback if they have any concerns," he says.

As to why the Government accepted Ms Chia's amendment, albeit after some to-ing and fro-ing and a day later, Mr Vikram Nair says it could be because the amendment was "very much in the spirit of the Bill anyway".

Indeed, the move by Ms Chia shows that giving pause to reflect can yield benefits.

It suggests that in Singapore, where the executive takes the lead in lawmaking, Parliament as a partner of the process can afford to be more assertive in monitoring the quality of legislation.

This requires parliamentarians to not just care about legislative standards, but also use existing processes effectively.

The Government, on its part, could also show, as it did in Ms Chia's case, that it is willing to consider amendments made in good faith and that will make legislation better.

Mr Hri Kumar Nair says that the process exists for MPs to scrutinise Bills, and the onus is on them to do so. There is nothing to stop MPs from approaching their contacts outside for advice when the Bills are complicated and technical, he says.

"You do see MPs putting in quite a lot of effort in some cases because it is a matter that's close to their heart. It's up to the MPs how far they want to go," he says.

No comments:

Post a Comment